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When an employee’s 10-foot-tall and bulletproof attitude on social media becomes a workplace reality (and nightmare)

It’s hard to believe that what someone says on social media may not be the whole truth and nothing but the truth. The truth is, people are more likely to say things on social media sites, like Facebook and Twitter, that they would never say to or about a person directly because the computer gives people a false impression that they can say or do whatever they want without repercussion. But as we have warned time and time again, comments made on social media sites may not be as private as the commenter may believe and can be very damaging, especially when those comments concern workplace issues, and even more so when they make allegations of workplace misconduct. Debord v. Mercy Health System of Kansas, Inc., Nos. 12-3072 and 12-3109 (10th Cir. Nov. 26, 2013) is a case that demonstrates just how an employee may feel 10 feet tall and bulletproof sitting at a computer keyboard, but whose tone changes when the repercussions from a social media post become all too real.

The Employee’s Facebook Complaints of Sexual Harassment and Pay Disparity

Sara Debord (Debord) was a nuclear-medicine technician at Mercy Health System of Kansas, Inc. (Mercy). Debord alleged that her supervisor, Leonard Weaver, subjected her to unwelcome touching and sexual comments starting soon after she was hired in 2004. Debord claimed that Weaver regularly (at least three days a week) put his hands up her sleeve or down the back of her shirt. While Weaver claimed he did this just to show Debord how cold his hands were, Debord claimed the touching was sexual in nature. Debord also claimed Weaver made offensive sexual comments and advances frequently, which included pulling down the neck of her shirt while she was leaning over a patient and asking Debord to show him her chest in a sexually suggestive manner.

Debord claimed she told Weaver to stop, but she did not complain to her employer about the alleged sexual harassment until 2009! In fact, Mercy did not receive any notice from Debord about Weaver’s behavior until July 6, 2009 when Debord had logged into Facebook during work hours and made the following posts:

“loves it when my boss adds an extra 4600.00 on my paycheck for hours I didn’t even work…awesome!!!”

“Oh, it’s hard to explain…basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for are areas…and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them)…and he needs to keep his creepy hands to himself…just an all around d-bag!!”

Many of Debord’s co-workers, including Weaver, saw the posts and it just so happened that later that day, Debord had a meeting with the HR Director, Eric Ammons, to discuss a gender-based pay-disparity claim Debord had recently made. During the meeting, Weaver interrupted the meeting to confront Debord about her Facebook posts. Debord denied even writing them — even after Weaver pulled out his laptop to show Ammons that the posts were indeed posted on Debord’s Facebook account. Debord tried to explain the posts and claimed anyone could have accessed her Facebook account from her mobile phone. Debord did admit to Ammons that she was overpaid, and Ammons started to investigate that allegation.

Two days later, Ammons met with Debord to further discuss the Facebook posts. For a third time, she denied making the posts. Ammons explained that Mercy would have to investigate the matter to determine who made the unauthorized posts with Debord’s phone if she did not confess. Debord finally confessed and was suspended for one day without pay for failing to conduct herself in a manner consistent with a high degree of personal integrity and professionalism.

Before ending the meeting, however, Ammons asked Debord again about the “creepy hands” comment she had made. Debord told Ammons that Weaver touched her and a lot of the women in the department with his cold hands. Ammons asked Debord if she thought it was sexual harassment and she said she “did not think so—she just thought that Weaver was a ‘pervert.’” Ammons condemned Weaver’s conduct as “inappropriate” and said it “should never happen” and said he would have the risk manager, Lana Brewster (Brewster), investigate the matter to see if there was “any potential for sexual harassment.”

The next day, Debord met with Brewster to discuss the sexual harassment complaint, but Debord denied ever making a sexual harassment complaint and claimed she was merely answering Ammons’ questions. Brewster asked Debord what she meant by her “creepy hands” post on Facebook, and Debord told Brewster that Weaver touched her arm or neck with his cold hands “daily” and made two sexual remarks to her. Brewster asked Debord if she wanted to file a formal complaint, but Debord declined. Brewster told Debord to let her know if there were any more issues and Debord assured Brewster that the touching and comments “probably wouldn’t happen again.” During the investigation, Brewster also interviewed a long-time female employee who denied any hostility or sexual tension in the department. Weaver admitted to the occasional touching, but claimed it was just to show them how cold his hands were. Brewster concluded that Weaver had not violated company policy.

Ammons eventually determined that Debord’s pay disparity claim was false. He also learned that Debord had sent messages to other employees accusing Weaver of destroying the evidence during the investigation. Ammons was concerned because the evidence was in his possession, not Weaver’s, and because Debord was making comments about a workplace investigation and disrupting other employees. As a result, Mercy terminated Debord for disruption, inappropriate behavior and dishonesty.

Debord’s Lawsuit

Debord sued Mercy for sex discrimination and retaliation and Weaver for assault and battery. Weaver countersued for defamation. The district court granted summary judgment to the defendants on all claims. Debord appealed to the Tenth Circuit Court of Appeals.

Setting aside the sexual harassment and defamation claims, the interesting question on appeal was whether Debord’s termination following her “creepy hands” Facebook post was retaliatory.

Debord claimed that her “creepy hands” Facebook post was her way of reporting sexual harassment and that she was terminated in retaliation for doing so. The court first looked to Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), where the Supreme Court of the United States held that the anti-retaliation provision in the Fair Labor Standards Act protects oral as well as written complaints. The court noted, however, that in Kasten, the employee orally called attention to unlawful practices in accordance with the employer’s internal grievance-resolution procedure.” Under those circumstances, the Supreme Court observed, “it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint.”

In Debord, the Tenth Circuit held that Debord’s Facebook complaint fell short of the Kasten standard. Why? Well, Debord’s Facebook post was not in accordance with Mercy’s flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy. It was only when Weaver himself brought the post to Ammons’ attention (remember Ammons originally was investigating only a previously raised pay disparity issue) that Mercy learned that, among many other complaints, Debord did not like Weaver’s “creepy hands.” Even then, Debord denied authoring the post, and not one, but three times before finally copping to it. With this, the court concluded that no jury could conclude that Mercy’s management acted unreasonably in response to Debord’s Facebook post.

The court later found that the employer’s decision to terminate Debord did not turn on whether she complained on Facebook, which meant that Debord could not prove the causal nexus element of her claim. Instead, the court concluded that the employer’s decision turned on Debord’s lying, authoring social media posts at work (though it is unclear from the court’s decision if this was a violation of the employer’s policy), and for her disruptive behavior during the investigation. Therefore, she could not show the reasons for her termination, including disruptive behavior and lying, were pretextual. The Tenth Circuit affirmed the district court’s summary judgment award in favor of the employer.

Takeaways

Despite the court’s conclusion that the employee’s sexual harassment complaint on Facebook did not provide the employer notice that the employee was complaining about sexual harassment, employers should not read this case as one saying that an employee’s complaint on social media can never constitute the requisite notice or constitute “protected activity” in the retaliation context.

Nevertheless, this case is helpful support for employers arguing that an employee’s rant on social media is insufficient notice of an employee complaint because the employee did not comply with the employer’s complaint policy. Clearly, Debord does not suggest that employers can duck the issue by burying their heads in the sand and refusing to investigate complaints made on social media, but it does help define some best practices for employers on this issue:

Have a well-documented, thorough and multi-channeled complaint procedure. The Debord court went into great detail praising the employer’s complaint procedure, which included numerous channels for employees to complain.

Follow your procedure. This includes implementing disciplinary action if harassment is discovered. The worst thing an employer can do is go through the trouble of having a complaint procedure and having a court find it would have been futile for the employee to complain because the employer did not follow its own procedure or because the procedure was a “paper only” policy, not one practiced in reality.

Take a Passive Approach to Receiving Information Posted by Employees on Social Media. In Debord, the employer was not aware of the “creepy hands” comment until the alleged harasser saw the post and confronted Debord about it during a pay disparity investigation. The court found that because the employee did not complain about the alleged harassment through any of the channels provided for in the employer’s policy (and then denied even posting the comment) that the employer could not have reasonably known that employee was registering a sexual harassment complaint. While I don’t think employers can or should take this decision to mean that complaints made on social media cannot be “protected” or provide “notice” under the law, I do think employers should use this case as one to incentivize a passive approach to reviewing social media posts of employees. The saying, “if you go looking for trouble, you’ll probably find it,” certainly applies to employers when it comes to reviewing social media posts of employees. If an employer actively reviews its employees’ social media posts and/or encourages other employees to gather social media posts by employees and turn them over, it is either setting itself up for an employee to argue that the employer knew or “should have known” about complaints he or she may have raised on social media and/or to be charged with the responsibility to investigate complaints about which it becomes aware. If an employer does not want this type of responsibility, it should take a passive approach. Another reason to take a passive approach on this issue: the federal Stored Communications Act, which we have written about (and cautioned about) here.

Supervisors Should Not Be Friends With Subordinates on Social Media. Just look at number 3 if you want to know why this one is included.

Investigate. Regardless of how it becomes aware, if an employer becomes aware of a workplace complaint, whether it be harassment, discrimination, pay disparity, or otherwise, the employer must take the complaint seriously and, if appropriate, investigate it, thoroughly. Once known, employers should treat complaints raised through social media like any written or oral workplace complaint made through the employer’s regular complaint channels.

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